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FOR
IMMEDIATE RELEASE R-2597
Monday,
July 31, 2006 202/273-1991
The
National Labor Relations Board (Board), in a 3-2 decision involving Randell
Warehouse of Arizona, found that Sheet Metal Workers Local 359 (Union) engaged
in objectionable conduct when its agents photographed employees during the
Union's distribution of campaign literature.
The
Board found that employees have a right to accept or not accept the Union
's literature, and that photographing them as they make that choice would
reasonably be coercive. The Union
did not provide the employees with any legitimate justification for the
photographing. Thus, the Board
found that the Union
's conduct tended to interfere with employee free choice in the election, and
directed that a second election be held. The majority opinion is signed by
Chairman Robert J. Battista and Members Peter C. Schaumber and Peter N. Kirsanow.
Members Wilma B. Liebman and Dennis
P. Walsh dissented. The decision
is posted on the Board's website at www.nlrb.gov.
In a prior
decision (Randell I), the Board found
that the photographing was not objectionable because it was not accompanied by
other coercive conduct. In that decision, the Board overruled precedent which
had held that union photographing was objectionable even if it was not
accompanied by other coercive conduct. The
Board there retained the rule that employer photographing was presumptively
coercive, even if it was not accompanied by other coercion.
The D.C.
Circuit Court of Appeals did not agree with the Board. The
court noted that the Board had not dealt adequately with its prior decision in Mike
Yurosek, 292 NLRB 1074 (1989). The
court remanded for "further consideration and a reasoned opinion." The
court did not preclude the Board from overturning precedent so as to clarify
Board law.
Upon
reconsideration, the majority in Randell
II concluded that the Randell I
rationale for the different standards for employees and unions could not
withstand careful scrutiny. The
majority stated:
The rationale for
finding that unexplained photographing has a reasonable tendency to interfere
with employee free choice applies regardless of whether the party engaged in
such conduct is a union or an employer. Thus,
the disparate treatment embraced by the Randell I Board cannot be squared
with the Act's fundamental principles.
The decision stated:
In the context of an
election campaign, the union seeks to become (or remain) the representative of
the unit employees. To achieve this
goal, the union must convince a majority of employees to vote in its favor. A reasonable employee would anticipate that the union would
not be pleased if he or she failed to respond affirmatively to the union's
efforts to enlist support, just as an employee would anticipate that an employer
would not be pleased if he or she rebuffed the employer's solicitation to reject
union representation.
Accordingly,
the Board overruled Randell I and
found that:
[I]n
the absence of a valid explanation conveyed to employees in a timely manner,
photographing employees engaged in Section 7 activity constitutes objectionable
conduct whether engaged in by a union or an employer.
Applying that
principle, the majority concluded that:
[T]he Union
engaged in objectionable conduct by photographing employees as they were being
offered literature by Union representatives. For
the reasons explained above, such photographing is presumptively coercive. Moreover,
the Union
did not adequately explain its purpose for the photographing. The
one explanation offered to a single employee -- "It's for the Union
purpose, showing transactions that are taking place. The
Union could see us handing flyers and how the Union
is being run" -- was ambiguous at best. It
did not establish a legitimate justification for the photographing. Accordingly,
the photographing reasonably tended to interfere with employee free choice, and
the election must be set aside.
In dissent,
Members Liebman and Walsh disagreed with the majority's overruling of Randell
I and stated they would adhere to the Board's original decision. They noted,
first, that the D.C. Circuit remanded the case to the Board for the limited
purpose of considering whether certain allegedly coercive conduct by pro-union
employees made the union's photographing objectionable, and thus it was
unnecessary for the majority to reach out and overrule the Board's original
decision. The dissent contended
further that the majority failed to grasp the "very different positions
that unions and employers occupy with respect to employees, in terms of campaign
access, economic relationship, and potential for coercion," as well as the
legitimate interests that unions have in photographing employees in order to
gauge and record their interests in organizing.
The dissent found that employers are in a
far more effective position to coerce employees than unions are, stating:
To
point out the obvious, employees are economically dependent on the employer, who
controls every aspect of their working lives. The
employer may fire workers, discipline them, impose harsher working conditions,
cut their pay, and deny them benefits.
The
dissent also contended employees likely will recognize the union's legitimate
interest in photographing, in the absence of any coercive union conduct that
would raise suspicion, even if the union does not provide employees with an
explanation. The dissent defended the Randell
I rationale for applying a different standard to union and employer
photographing, stating:
Recognizing that the
realities of the workplace bear differently on employers and on unions is not
disparate treatment; it is common sense and fidelity to the Act. Our
original decision in this case was correct. Today's
decision, in contrast, is arbitrary both in failing to see the difference
between union photographing and employer photographing and in failing to see the
similarity between union photographing and other, permissible organizing tools. The
result places unions in a dilemma: Photographing
employees is objectionable, unless a legitimate justification is communicated to
the employees, but the majority implies that a central justification for
photographing employees, to identify supporters and potential supporters of the
union, is inherently coercive. In
light of its internal contradictions, we do not see how the majority's decision
can stand.
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